Court upholds teacher’s firing in porn flap

In a case closely watched by public employee unions, a Wisconsin appeals court has upheld the firing of a teacher who briefly looked at pornography on his school computer outside of school hours.

Cedarburg High School science teacher Robert Zellner was fired after the district learned he viewed adult images in 2005 for slightly more than one minute on a Sunday. He and his union have argued that his dismissal was too harsh for the conduct.

Arbitrator Edmond Bielarczyk Jr. agreed in 2006, ordering the district to reinstate him to the job he held for 11 years, reduce his discipline to a reprimand, and award him back pay. The arbitrator said one immoral act was insufficient to fire Zellner and that he was being treated more harshly than other employees who accessed inappropriate sites.

The school district refused, appealing the decision in circuit court. A judge overturned the arbitrator’s ruling last year, saying Bielarczyk failed to consider Wisconsin’s public policy against immoral conduct in schools.

The District 2 Court of Appeals upheld that decision July 23. The arbitrator ignored a law that allows the state to revoke teaching licenses for "behavior that is contrary to commonly accepted moral or ethical standards" and that endangers the welfare of students, Judge Harry Snyder wrote for a unanimous three-judge panel.

"We agree that protection of children and the promotion of a safe educational environment is a clear and compelling public policy," he wrote. "For purposes of reviewing an arbitration award that reinstates a teacher who has accessed pornography while on school property, the stated public policy must be considered."

Zellner’s previously unblemished work history and the fact that he accessed the images on a weekend when no students were present are not enough to outweigh that policy, Snyder wrote.

Unions representing teachers, police, firefighters, and other public employees worried the case would weaken the system of binding arbitration they use to settle employment disputes with government agencies. Unions argued that courts should rarely, if ever, overturn arbitration decisions over public policy concerns.

The appeals court said it agreed arbitration decisions should usually be binding, but in this case the arbitrator exceeded his powers. Therefore, the award must be vacated, Snyder wrote.

Steven Rynecki, a Milwaukee lawyer who represented the Cedarburg School Board, said the appeals court’s decision and a recent Wisconsin Supreme Court ruling could strengthen the hands of employers to fire workers who commit wrongdoing.

Some arbitrators used to review labor agreements only to determine whether discipline was appropriate, he said, and now they must consider other public policies and laws that might apply.

"I would guess unions and arbitrators are scratching their heads about how far and how wide this principle is going to be applied," he said. "It’s an important case, but we don’t know how it’s all going to shake out."